A federal appeals court has declared that the Justice Department need not make public a guide to when prosecutors should disclose evidence to defendants in criminal cases, but two of the three judges deciding the case took the unusual step of indicating that they believe the manual should be public.

The U.S. Court of Appeals for the D.C. Circuit ruled unanimously Tuesday that the manual — created in the wake of the Justice Department acknowledging failures in the prosecution of the late Sen. Ted Stevens (R-Alaska) — is exempt from disclosure under the Freedom of Information Act because the guide qualifies as privileged attorney-work product.

The main opinion in the case, authored by Judge Sri Srinivasan, affirms a district court's decision rejecting a lawsuit in which the National Association of Criminal Defense Lawyers demanded release of the manual.

What's more striking is the concurring opinion from Judge David Sentelle, stating his view that while D.C. Circuit precedent required the rejection of the defense lawyers' plea for access, that precedent is wrong and should be overturned in favor of greater public access to federal prosecutors' litigation policies and practices.